BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

the individual, if he had sufficient financial means and if there was a sufficient supply in the market, could also be obtained from individuals”. 15 The fundamental social rights are embodied in the enabling elements of the welfare state’s primacy of social welfare. For Nery da Silva, 16 the minimal, liberal State of non- intervention in the negative rights gives way to the intervening State, engaging in the economic sphere for the promotion of social programs and goals, after the excesses experienced at the beginning of the XX century. 2.2 Social rights in the area of effectiveness and the prohibition of retrocession In the examination of the dogmatics of social rights in the internal constitutional plan, the study of its effectiveness is particularly relevant. This is because it is commonly conceived that the protection, guarantee and realization of social legal benefits would be conditioned to the factual and legal possibilities of the State and, therefore, that the budgetary constraints would be severe obstacles in the attainment of these constitutional objectives. In Barroso’s 17 teaching, effectiveness, thus understood as the materialization of the law or the fulfillment of the order embodied in the norm, comes to get enforced by the constitutional order of the country, insofar as the Federal Constitution and its own provisions are interpreted under the prism of the doctrine of effectiveness. In accordance with this movement, the Federal Constitution ceased to be a document of mere intentions, dissociated from reality, to make itself present in the world of facts, materializing its devices in a true constitutional dirigism. The doctrine of effectiveness ratifies the ideal of a normative force of the Federal Constitution of 1988, from which it must be valued by the maximization of the effects of the constitutional devices. The content of the effectiveness thesis 18 and the principle of normative force of the Constitution were formally positivated in the constitutional text, admitting, for this understanding, the close relationship between the institutes of applicability and effectiveness, since the constitutional provision guaranteed the right holders and the immediate applicability of these guarantees. According to Piovesan, 19 the Constitution establishes a juridical system of fundamental rights, freedoms and guarantees, based on its normative force, imperativeness and maximum and immediate effectiveness. 15 ALEXY, R.: Teoria dos Direitos Fundamentais. 2nd edition 4th print run. Translated by Virgílio Afonso da Silva from 5th German edition. São Paulo: Malheiros, 2015, p. 499. 16 NERY DA SILVA, R. L.: O Estado contemporâneo e a força subjetiva dos direitos sociais. In: BAEZ, N. L. X.; GESTA, R. L.; MEZZAROBA, O. (Coord.).: Dimensões materiais e eficácias dos direitos fundamentais. São Paulo: Conceito Editorial, 2010, p. 187. 17 BARROSO, L. R.: Curso de Direito Constitucional Contemporâneo: os conceitos fundamentais e a construção do novo modelo. 5 edition. São Paulo: Saraiva, 2015, p. 517-518. 18 According to Article 5 of 1988’s Brazilian Federal Constitution. 19 PIOVESAN, F.: Direitos Humanos e o Direito Constitucional Internacional. 14. edition, revised and updated. São Paulo: Saraiva, 2013, p. 91.

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